Evolving Law on Airport Implications by Unmanned Aerial Systems (2017) / Chapter Skim
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Pages 33-39
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From page 33... ...
33 case law -- and arguably no precedent at all -- concerning preemption in terms of UAS operations precisely. Indeed, how UAS operations work into the long-standing preemption framework is unclear.
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34 • 14 C.F.R. § 61.3 provides: "No person may act as pilot in command, or in any other capacity as a required pilot flight crew member of a civil aircraft of United States registry unless he has in his personal possession a current pilot certificate issued to him under this part." • Prior to flight, the pilot must review available information concerning the flight, 14 C.F.R.
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35 has yet decided if this sort of language is consistent with existing federal law or whether existing federal aviation law would have priority over state laws respecting drones. In the absence of definite guidance, the FAA issued a fact sheet in December 2015 entitled "State and Local Regulation of Unmanned Aircraft Systems (UAS)
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From page 36... ...
36 • The FAA is not persuaded that including a preemption provision in the final rule is warranted at this time. Preemption issues involving small UAS necessitate a case-specific analysis that is not appropriate in a rule of general applicability.
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37 The ordinance also sets out locality-specific prohibitions, the broadest of which prohibits UAS from "being deployed, launched or flown in any airspace within or over any sporting and/or large venue special event, including but not limited to, over and within a half-mile radius of Bayfront Park, Marlins Ballpark, Miami Marine Stadium, or the Calle Ocho Festival when it is in use during a large venue special event, and over public parks and public facilities during large venue special events." 306 In all other areas of the city, the ordinance imposes restrictions that are largely duplicative of FAA regulations: (1) UAS may not be larger than five pounds including any attachments, and may not be equipped with detachable cargo, releasable payload, or any device equipped to carry a weapon.
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From page 38... ...
38 Relating to "small unmanned aircraft," specifically, the Chicago ordinance does what many other local ordinances do -- establish some of the same rules already established by the FAA. For example, it prohibits any person from flying "in city airspace" except for hobby or recreational purposes; over any person who is not involved in the operation of the small unmanned aircraft, without such person's consent; over property that the operator does not own, without the property owner's consent, and subject to any restrictions that the property owner may place on such operation; at an altitude higher than 400 feet above ground level; in a careless or reckless manner; in violation of federal or state law; or within five miles of an airport.316 Violators are subject to a fine between $500 and $5,000 or may be incarcerated up to 180 days.317 Despite its redundancy with federal UAS regulations, the Chicago ordinance -- like the Miami-Dade ordinance discussed in Part V.B, supra -- carves out an exception for federal law: Operations Authorized by the FAA – Exception.
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From page 39... ...
39 • No locality in Virginia is permitted to regulate the use of privately owned, unmanned aircraft system within its boundaries.324 In contrast to these jurisdictions, in North Carolina, a unit of local government has explicit authority to adopt an ordinance to regulate the use of the local government's property for the launch and recovery of UAS.325 The right of a state to preempt and subordinate local law is sometimes referred to as Dillon's Rule, named in connection with court decisions issued by Judge John F Dillon of Iowa in 1868.326 It affirms a narrow interpretation of a local government's authority, in which a local or municipal government (i.e., a "substate")
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